EXHIBIT 4.2
FORM OF
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF NIPSCO CAPITAL MARKETS, INC.
The undersigned, being all of the directors of NIPSCO Capital Markets,
Inc., an Indiana corporation ("Capital"), in lieu of holding a special meeting
of the Board of Directors of Capital, hereby adopt the following resolutions by
unanimous written consent pursuant to Section 23-1-34-2 of the Indiana Business
Corporation Law.
WHEREAS, the Board of Directors of Capital has previously authorized the
filing of a Registration Statement with the Securities and Exchange Commission,
jointly with NIPSCO Industries, Inc. ("Industries"), to register the offering
and sale of Capital's unsecured subordinated debt securities in an aggregate
principal amount of up to $75,000,000 and Industries' obligations pursuant to
the Support Agreement, dated as of April 4, 1989, as amended, between Industries
and Capital; and
WHEREAS, the Board of Directors of Capital has authorized the execution and
delivery, by and on behalf of Capital, of an Indenture among Capital,
Industries, and Chemical Bank, as trustee (the "Trustee"), providing for the
issuance from time to time of Capital's subordinated debt securities; and
WHEREAS, Capital and Industries have filed with the Securities and Exchange
Commission a Registration Statement on Form S-3, Registration No. 33-______ (the
"Registration Statement"), registering the offer and sale of such subordinated
debt securities; and
WHEREAS, the Board of Directors desires to establish, pursuant to Section
301 of the Indenture, a series of subordinated debt securities to be issued
pursuant to the Indenture and offered and sold under the Registration Statement;
NOW THEREFORE BE IT RESOLVED by the Board of Directors as follows:
1. Capital hereby establishes, pursuant to Section 301 of the Indenture, a
series of subordinated debt securities as follows (capitalized terms not defined
in these resolutions having the meaning given to them in the Indenture):
(a) Such subordinated debt securities shall be designated the "Junior
Subordinated Deferrable Interest Debentures, Series A" (the "Series A
Debentures").
(b) The aggregate principal amount at maturity of the Series A Debentures
that may be authenticated and delivered under the Indenture (except for Series A
Debentures that may be authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Series A Debentures pursuant to
Sections 304, 305, 306, 906 or 1107 of the Indenture) shall not be in excess of
$75,000,000.
(c) The Series A Debentures shall mature thirty years from the date of
issuance or from such other date reasonably before or after the date of issuance
(the "Issue Date") as may be approved by the Treasurer of Capital at the time of
pricing of the Series A Debentures, such
approval to be conclusively evidenced by the delivery of a Company Order to the
Trustee pursuant to Section 303 of the Indenture reflecting such Issue Date.
(d) Each Series A Debenture shall bear interest at a rate per annum to be
approved by the Treasurer of Capital at the time of the pricing of the Series A
Debentures, such approval to be conclusively evidenced by the delivery of a
Company Order to the Trustee pursuant to Section 303 of the Indenture reflecting
such interest rate (the "Interest Rate"). Each Series A Debenture shall bear
interest on the unpaid principal of such Series A Debenture from the Issue Date
until such principal becomes due and payable and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Interest Rate, compounded
quarterly. Subject to the provisions of paragraph (f), below, interest shall be
payable quarterly in arrears on March 31, June 30, September 30, and December 31
of each year (each, an "Interest Payment Date"), commencing March 31, 1996, to
the person in whose name such Series A Debenture is registered on the Regular
Record Date for such Interest Payment Date. The Regular Record Date for Series
A Debentures issued in the form of one or more Global Securities shall be the
close of business on the Business Day next preceding an Interest Payment Date;
provided, however, that if the Series A Debentures are no longer represented by
one or more Global Securities, the Company may select a Regular Record Date for
each payment of interest which shall be any date at least one Business Day
before an Interest Payment Date.
(e) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed will be computed on the
basis of the actual number of days elapsed in such 30-day month. In the event
that any date on which interest is payable on the Series A Debentures is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of such delay), except that, if such Business Day is in
the next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(f) Capital shall have the right at any time, and from time to time, during
the term of the Series A Debentures, so long as an Event of Default has not
occurred and is not continuing, to defer payments of interest on the Series A
Debentures by extending the interest payment period for a period not exceeding
20 consecutive quarters (the "Extended Interest Payment Period"). At the end of
such Extended Interest Payment Period, Capital shall pay all interest then
accrued and unpaid (together with interest thereon, compounded quarterly at the
Interest Rate, to the extent permitted by applicable law) to the Holders of the
Series A Debentures in whose names the Series A Debentures are registered in the
Security Register on the first Regular Record Date after the end of the Extended
Interest Payment Period. Prior to the termination of any such Extended Interest
Payment Period, Capital may further extend such period, provided that such
Extended Interest Payment Period, together with all such previous and further
extensions thereof, shall not exceed 20 consecutive quarters or extend beyond
the maturity of the Series A Debentures. Upon the termination of any Extended
Interest Payment Period and the payment of all accrued and unpaid interest then
due, Capital may commence a new Extended Interest Payment Period, subject to the
terms set forth in the Indenture and this paragraph. No interest shall be due
and payable
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during an Extended Interest Payment Period except at the end thereof, other than
with respect to a Series A Debenture redeemed by Capital pursuant to paragraph
(i), below.
(g) Capital shall give the Trustee and the Holders of the Series A
Debentures notice of its selection of an Extended Interest Payment Period ten
Business Days prior to the earlier of (i) the next Interest Payment Date or (ii)
the date upon which Capital is required to give notice to the Holders of the
Series A Debentures (or, if applicable, to the New York Stock Exchange or other
applicable self-regulatory organization) of the record or payment date of such
related interest payment. The quarter in which any notice is given pursuant to
this paragraph shall be counted as one of the 20 quarters permitted in the
maximum Extended Interest Payment Period.
(h) The principal of each Series A Debenture and premium, if any, and
interest thereon shall be payable at the office of the Paying Agent, in the
Borough of Manhattan, The City of New York. Chemical Bank shall initially be
appointed as Paying Agent.
(i) Capital shall have the right to redeem the Series A Debentures, in
whole or in part, from time to time, on or after __________, 2006, upon not less
than 30 nor more than 60 days' notice, at a redemption price or redemption
prices equal to such percentage or percentages of the principal amount of the
Series A Debentures as may be approved by the Treasurer of Capital at the time
of the pricing of the Series A Debentures, such approval to be conclusively
evidenced by the delivery of a Company Order to the Trustee pursuant to Section
303 of the Indenture reflecting such redemption price or redemption prices. If
less than all of the Series A Debentures are to be redeemed, the particular
Series A Debentures to be redeemed shall be selected, not more than 60 days
prior to the redemption date, pro rata or by lot or by any other method that the
Trustee shall deem fair and appropriate; provided, however, that if at the time
of redemption, the Series A Debentures are registered as a Global Security, the
Depositary shall determine by lot the principal amount of such Series A
Debentures held by each Holder to be redeemed.
(j) Capital shall have no obligation to redeem or purchase the Series A
Debentures pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof.
(k) The Series A Debentures shall be issued in the form of one or more
Global Securities, which will have an aggregate principal amount equal to that
of the Series A Debentures, and shall be deposited with, or on behalf of, The
Depository Trust Company, as Depositary. A Global Security shall be
exchangeable for Series A Debentures registered in the names of persons other
than the Depositary or its nominee only under the circumstances described in
Section 305 of the Indenture. Any Series A Debenture issued in certificated
form pursuant to Section 305 of the Indenture shall be in denominations of
$1,000 or any integral multiple thereof.
(l) No payments of additional amounts in respect of taxes or similar
charges withheld or deducted from the Series A Debentures will be made to any
United States Alien pursuant to Section 301(16) of the Indenture.
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(m) The Series A Debentures shall contain such other terms, conditions and
provisions not provided for in these or prior resolutions of the Board of
Directors as the Treasurer of Capital may approve, such approval to be
conclusively evidenced by the delivery to the Trustee of a Company Order
specifying such terms, conditions and provisions pursuant to Section 303 of the
Indenture.
2. The form of debenture for the Series A Debentures, in substantially the
form included in the Registration Statement, and the terms and conditions set
forth therein are hereby approved and authorized in all respects, with such
changes therein as the officer executing such Series A Debentures shall
determine, and such Series A Debentures shall be executed for and on behalf of
Capital by any one of the Chairman of the Board, the President, any Vice
President, or the Treasurer, and attested to by the Secretary or any Assistant
Secretary, either by original or facsimile signature.
3. Within the limitations specified in these resolutions, the Chairman of
the Board, the President or a Vice President and the Treasurer (or any Assistant
Treasurer, the Comptroller, any Assistant Comptroller, the Corporate Secretary
or any Assistant Corporate Secretary of Capital designated by the Treasurer) is
hereby authorized to deliver to the Trustee an Officers' Certificate
establishing the Series A Debentures provided for herein and all other terms
specified by Section 301 of the Indenture and to issue one or more Company
Orders, determining therein all terms and provisions of the Series A Debentures
as provided for in these resolutions and the Officers' Certificate.
4. Subject to the Registration Statement having been declared effective
and to the continuance of such effectiveness in full force and effect, the
Chairman, the President, any Vice President and the Treasurer of Capital are
hereby authorized to issue and sell the Series A Debentures on terms and
conditions consistent with these resolutions, the Indenture and the Registration
Statement.
5. The officers of Capital are hereby authorized, directed and empowered
to do and perform and to cause to be done and performed all acts and things, and
to execute and file such documents and instruments as may be necessary,
convenient or appropriate and to pay all such charges and expenses as may be
necessary to carry into effect the financing program herein contemplated and to
carry into effect the various resolutions adopted by the Board of Directors with
respect to this financing program.
Dated: _________________________
___________________________________ _______________________________________
Stephen P. Adik Gary L. Neale
___________________________________ _______________________________________
John W. Dunn Jerry M. Springer
___________________________________
Patrick J. Mulchay
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